Motion: quash subpoena duces tecum

📄 Motion: quash subpoena duces tecum — Wednesday, November 20, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\20\MOTION-QUASH-SUBPOENA-DUCES-TE.DOC

TRIAL

▲ Day 19 of 57

◀ Court adjourned and exhibits admitted Recall of jury and next witness ▶

Date: Wednesday, November 20, 1996 • Utterances: 61

The court heard a motion to quash a subpoena duces tecum served on author Lawrence Schiller for an audio tape — a microcassette recorded by OJ Simpson five days after the murders — that had been given to Schiller by Robert Kardashian. Judge Fujisaki questioned Schiller directly about the tape's custody, then denied the plaintiffs' request to compel production, ruling the tape falls within journalist/author privilege. The hearing ended with a brief dispute between Baker and Gelblum over whether the defense had improperly concealed the tape's existence.

# 1 (REGINA D. CHAVEZ, OFFICIAL REPORTER)

# 2 (The following proceedings were held in open court, outside the presence of the jury.)

# 3 THE COURT:

The Court will call the matter of the motion to quash by Schiller.

# 4 MS. SAGER:

Good morning, Your Honor. Kelly Sager on behalf of Lawrence Schiller.

I'm moving over here just because there's no room at counsel table. I'll just stand over here.

# 5 THE COURT:

Is Mr. Schiller here?

# 6 MS. SAGER:

Yes, Your Honor, Mr. Schiller is here.

# 7 THE COURT:

Okay.

Would you come forward.

Swear Mr. Schiller.

# 8 THE CLERK:

Sir, please raise your right hand to be sworn.

LAWRENCE SCHILLER, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows:

# 9 THE CLERK:

You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God?

# 10 THE WITNESS:

I do.

# 11 THE CLERK:

Sir, if you would, please state and spell your name for the record.

# 12 THE WITNESS:

Lawrence J. Schiller, L-A-W-R-E-N-C-E, S-C-H-I-L-L-E-R.

# 13 THE COURT:

Mr. Schiller, you're the object of a subpoena duces tecum with regards to a certain audio tape, and there's been a motion filed on your behalf to quash that subpoena. And in conjunction with it, your attorney filed declarations to the effect of certain factual representations with regards to that tape, which I would like to make inquiry of you.

First of all, there's a representation that the tape was given to you by Mr. Kardashian; is that correct?

# 14 THE WITNESS:

It was given to me in a group of many tapes that I was acquiring for my research.

# 15 THE COURT:

I didn't ask you that.

# 16 THE WITNESS:

I'm sorry.

It was not physically given to me; it was within a stack of many tapes.

# 17 THE COURT:

Given to you by?

# 18 THE WITNESS:

Mr. Robert Kardashian.

# 19 THE COURT:

Okay.

And your attorney also represents that you informed her that there was only one copy of the tape; is that right?

# 20 THE WITNESS:

One copy, that's correct.

# 21 THE COURT:

Not a copy, but an original?

# 22 THE WITNESS:

There is an original and one copy.

# 23 THE COURT:

Both of them are in your possession?

# 24 THE WITNESS:

Yes, sir.

# 25 THE COURT:

Okay.

And could you physically describe the tape, what it looks like.

# 26 THE WITNESS:

The original?

# 27 THE COURT:

Yeah.

# 28 THE WITNESS:

The original is a microcassette, of the small size.

# 29 THE COURT:

Okay.

# 30 THE WITNESS:

The copy is a digitized copy that was made by myself to reduce some background noise, hiss sounds.

# 31 THE COURT:

So far as you know, there are no other copies?

# 32 THE WITNESS:

That is correct.

# 33 THE COURT:

Okay. Thank you.

You may step down.

# 34 (Witness complies.)

# 35 THE COURT:

Mr. Gelblum.

# 36 MR. GELBLUM:

Yes, Your Honor.

# 37 THE COURT:

I've read the moving and opposing papers. Anything else you want to add?

# 38 MR. GELBLUM:

No, Your Honor.

# 39 THE COURT:

It seems to me that this item is within the matter of privilege. And the reason for my asking questions of Mr. Schiller was to ascertain whether there were any other copies and whether or not I should hold defense in contempt for not producing.

And it would appear from testimony, that they have no other copies. I don't see how I can hold them in contempt.

# 40 MR. GELBLUM:

I wasn't asking to hold them in contempt.

When we investigated further, we determined that Mr. Schiller, as far as we can tell, does have the only copies.

We ask that you compel Mr. Schiller to produce his copies. I don't believe, as stated in our papers, that it is within the privilege.

# 41 THE COURT:

Well, unfortunately, the weight of the juris prudence in the United States seems to be against you.

KEY QUOTE

# 42 MR. GELBLUM:

Well, Your Honor, I'm not sure if you're referring to the First Amendment privilege or the California shield.

# 43 THE COURT:

All of them.

# 44 MR. GELBLUM:

The California shield, there's no authority, based on the statute, does not apply to book authors at all. Plus, the magazines, newspapers and other periodicals, the express language of the statute, Ms. Sager has not cited a single case applying the California law for a book author.

The only cases cited and the only ones we're aware of any shield to the California law is the First Amendment case that is a qualified privilege.

The privilege is overcome, as Ms. Sager's papers concede, by showing of there being only the one copy, there being no other sources, and it being highly relevant and material to the case. And I think it's obvious, given a tape recorded by the defendant five days after the murders, discussing his situation at that moment, could not be more material and relevant to this case. That overcomes the privilege.

# 45 THE COURT:

Well, I don't think that overcomes the privilege. So since the defense has had an opportunity to take something up on a writ -- here is your opportunity.

# 46 MR. GELBLUM:

You can give Ms. Sager that opportunity; she probably has more time.

# 47 MS. SAGER:

I'll defer to Mr. Gelblum.

# 48 MR. GELBLUM:

Thank you.

# 49 MR. BAKER:

Your Honor, I would just say that it seems to me that the accusation was made that we were withholding a tape in this courtroom.

The least Mr. Gelblum could have done is file a declaration withdrawing the accusation that we had a tape and withheld it, because we didn't have a tape; we didn't withhold it. And I think that was the very least he could have done after the accusation was made in court last week.

# 50 MR. GELBLUM:

Mr. Baker has quite a bit of gall. After we demonstrated in our papers the discovery responses, saying there was no tape ever made.

KEY QUOTE

# 51 MR. BAKER:

That is not true.

# 52 THE COURT:

Well, looking at the history of the paper wars that have been conducted in this case, I feel that the defense can be gracious and take it with a large grain of salt.

KEY QUOTE

# 53 MS. SAGER:

Your Honor, may Mr. Schiller be excused?

# 54 THE COURT:

Excuse me?

# 55 MS. SAGER:

May Mr. Schiller be excused?

# 56 THE COURT:

Unless he wants to hang around.

# 57 MR. GELBLUM:

Your Honor, just so -- we may want to recall him before the jury; he's not excused permanently in the case.

# 58 THE COURT:

If he's a witness --

# 59 MR. GELBLUM:

He's our witness.

# 60 THE COURT:

He is ordered to be here under subpoena, yes.

# 61 MR. GELBLUM:

Thank you.

Temperature

tense

Key Quotes (5)

Peter Gelblum

a tape recorded by the defendant five days after the murders, discussing his situation at that moment, could not be more material and relevant to this case

Reveals the content and timing of the tape — Simpson's own words recorded shortly after the killings — and why plaintiffs fought hard for it

Hiroshi Fujisaki

Well, unfortunately, the weight of the juris prudence in the United States seems to be against you.

Fujisaki's blunt dismissal of plaintiffs' privilege arguments, signaling his ruling before full argument

Hiroshi Fujisaki

looking at the history of the paper wars that have been conducted in this case, I feel that the defense can be gracious and take it with a large grain of salt.

Fujisaki's characteristically dry rebuke of Baker's demand for a retraction from Gelblum

Robert Baker

The least Mr. Gelblum could have done is file a declaration withdrawing the accusation that we had a tape and withheld it, because we didn't have a tape; we didn't withhold it.

Baker pressing for a formal retraction of an accusation made in open court the prior week

Peter Gelblum

Mr. Baker has quite a bit of gall. After we demonstrated in our papers the discovery responses, saying there was no tape ever made.

Gelblum's pointed counter-accusation that defense discovery responses denied the tape's existence

Evidence (2)

Informal

Microcassette tape recorded by OJ Simpson approximately five days after the murders, given to author Lawrence Schiller by Robert Kardashian along with a stack of other tapes

subpoena to compel production quashed; tape remains with Schiller

Informal

Digitized copy of the microcassette made by Schiller to reduce background noise/hiss

discussed; both original and copy confirmed in Schiller's possession

Notable Exchanges (3)

Hiroshi Fujisaki•Lawrence Schiller

Judge questions Schiller directly about the tape's provenance, chain of custody, and whether any other copies exist — focused on whether defense could be held in contempt for non-production

procedural

Peter Gelblum•Robert Baker

After the ruling, Baker demanded Gelblum formally retract a prior courtroom accusation that the defense withheld the tape; Gelblum shot back that defense discovery responses denied any tape existed

heated

Peter Gelblum•Ms. Sager

After Fujisaki offered plaintiffs the opportunity to seek a writ, Gelblum deflected to Sager; she deflected back — neither wanted to pursue the writ

light

Light Moments (1)

Hiroshi Fujisaki

When Sager asked if Schiller could be excused, Fujisaki responded 'Unless he wants to hang around' — dry humor at a witness's expense

Credibility Attacks (1)

⚔ Robert Baker / Defense

prior inconsistent statement

Gelblum argued defense discovery responses stated no tape was ever made, contradicting Baker's claim that they never withheld anything

Objections

None recorded

Proceeding 8349 • 61 utterances

Civil Trial

Department 103